Deputy Vincent Igoe maintained Alvarez threw a chunk of concrete at him, refused to stop when ordered to do so and lunged at the deputy. In the lawsuit filed in U.S. District Court, Alvarez's family contends Alvarez was doing nothing illegal at the time of the shooting and Igoe had no right to approach him. The family also contends he posed no threat to Igoe.

Alvarez, the suit says, "was not observed to be engaged in any criminal or otherwise improper conduct; he was simply walking down the side of the road."

"Rock or no rock, this shooting was unwarranted, unnecessary and constituted excessive force under the circumstances," said Donald Boyajian, the attorney who filed the lawsuit. "We consider this to be a tragedy for this family. This was a human life."

While Alvarez was in the country illegally, Boyajian said, he was a gentle man trying to support his family who live in a remote mountainous area of Mexico.

"Mr. Alvarez may not have been here as a documented worker," Boyajian said. "He left six children and a wife, and he was working very hard to give them a better life."

His death was the result of negligence, recklessness and deliberate indifference, the lawsuit contends.

Alvarez was shot twice in the torso with one bullet lodging in his stomach and a second exiting through his shoulder.

Sheriff James Campbell declined to discuss the lawsuit Tuesday but noted a grand jury reviewed the case and declined to file criminal charges against the deputy.

The suit also claims the Albany County sheriff's department failed to properly train Igoe in the use of a firearm and that it ignored the deputy's history in promoting him. It contends that Igoe had a history of violent behavior.

Boyajian declined to discuss what Igoe had allegedly done to warrant that description.

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"We conducted an investigation," he said. "I believe the facts will come out about those allegations. There are issues that are out there that were known to the department."

Tests show Alvarez did not have drugs or alcohol in his system at the time of his death.

Alvarez is survived by his wife, Augustine Cruz Garcia, and six children ranging in age from 5 to 17. In the five years prior to his death, he had been caught and deported three times trying to cross the border into the United States. The 36-year-old farmer lived in an impoverished village mountain village in the state of Oaxaca.

The suit was filed by Boyajian on behalf of attorney Gaspar Castillo, who is administrator of Alvarez's estate. It does not specify the amount of damages being sought.